Michele Simon has been writing and speaking about food politics and food industry marketing and lobbying tactics since 1996.

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Monsanto Teams up with Congress to Shred the Constitution

Posted on Monday, March 25th, 2013 by Michele Simon

Our founding fathers, white-maleness aside, did get a few things right. One of them was the concept of “separation of powers,” to ensure a system of checks and balances among the three branches of government: executive, legislative, and judicial. But a dangerous provision snuck into the budget bill passed last week in Congress upends that system. Without any hearings on the matter, the Senate included language that would require the U.S. Department of Agriculture to essentially ignore any court ruling that would otherwise halt the planting of new genetically-engineered crops. Here is how Capital Press explains it:

The rider pertains to transgenic crops that have been deregulated by the USDA but then had that approval overturned by a judge — a scenario that has occurred with genetically engineered alfalfa and sugar beets.

In such a situation, the agency “shall” immediately issue permits or a partial deregulation order that would temporarily allow farmers to continue growing and selling the crop until USDA is done re-evaluating its environmental effects, according to the rider.

Why is this such a big deal? The court system is often our last hope, with Congress, the White House, and regulatory agencies deep inside industry’s pocket. Several legal challenges have resulted in court decisions overturning USDA’s approval of new GMO crops, for example, sugar beets.

So the biotech industry, unable to make its case to a judge, figured why not just rewrite the Constitution instead, with the help of a Democratic Senate led by Senator Barbara Mikulski, chair of the Senate Appropriations Committee. Despite Montana Senator Jon Tester’s best attempts to stop the so-called biotech rider, the measure was pushed through. (Industry had tried to get a similar measure passed more than once last year.) Tester minced no words, in an article in today’s POLITICO about this and other industry power grabs such as weakening small farmer protections:

These provisions are giveaways, pure and simple, and will be a boon worth millions of dollars to a handful of the biggest corporations in this country. They deserve no place in this bill. We simply have got to do better on both policy and process.

If President Obama signs the budget deal with this provision, it could have long-lasting and serious consequences. This list of pending petitions to USDA to approve genetically-engineered crops includes new versions of corn, soybean, canola, and cotton. Once these crops get planted, it will be too late to do much about it. That’s why groups such as the Center for Food Safety file lawsuits when USDA turns a blind eye to the potentially harmful environmental consequences of these unique crops.

Here is how Andrew Kimbrell, executive director of the Center for Food Safety described the situation:

In this hidden backroom deal, Senator Mikulski turned her back on consumer, environmental, and farmer protection in favor of corporate welfare for biotech companies such as Monsanto. This abuse of power is not the kind of leadership the public has come to expect from Senator Mikulski or the Democrat Majority in the Senate.

The biotech industry, with the help of Congress, is attempting an end-run of the judicial system. Since judges can’t get be bought off, just go to your friends in Congress instead.

Unfortunately, most of the mainstream media has not picked up on this unprecedented Big Biotech power grab, and in the case of NPR, has even spread misinformation about the rider’s effects:

But a closer look at the language of the provision suggests it may not be granting the USDA any powers it doesn’t already have.

“It’s not clear that this provision radically changes the powers USDA has under the law,” Greg Jaffe, director of the Biotechnology Project at the Center for Science in the Public Interest, tells The Salt.

This interpretation was echoed, unsurprisingly, by the biotech industry, in Capital Express:

“It doesn’t require the USDA to do anything it wouldn’t otherwise have the authority to do,” said Karen Batra, communications director for the Biotechnology Industry Organization. “The language is there to protect farmers who have already made planting decisions.”

But as Kimbrell of the Center for Food Safety explains, the new language makes what is currently discretionary or optional on USDA’s part, mandatory, a huge difference:

The word “shall” forces the USDA to continue allowing biotech crop cultivation even if its commercialization was overturned. They’ve taken away the discretion of the secretary of agriculture. Its real not-so-hidden purpose is to take away the ability to effectively vacate the approval of a crop that’s been approved illegally.

If there is any good news, it’s that the continuing resolution the provision hitched a ride on is only valid for six months. But industry seems confident it can make the workaround permanent. Likely what will follow is a protracted court battle over the policy’s constitutionality; remember that whole separation of powers thing? Still, any such legal challenge will likely take years to be resolved. Even USDA thinks the provision is unconstititional. Secretary Vilsack’s office told POLITICO that he has asked the Office of General Council to review the language, “as it appears to pre-empt judicial review of a deregulatory action which may make the provision unenforceable.”

Meanwhile, the grassroots movement continues to grow to demand labeling of foods containing genetically-engineered ingredients. While important, we cannot let labeling distract us from pro-biotech policies at the other end of production. The fewer GMO crops that are allowed to be planted in the first place, the fewer end-products containing GMOs.

But it’s not too late. You can still demand that President Obama refuse to sign the budget bill into law unless the biotech rider (aka Monsanto Protection Act) is removed. Food Democracy Now! has already gathered more than 175,000 signatures demanding Obama do the right thing. From that organization’s action alert:

By sneaking Section 735 into a federal appropriations bills, Monsanto has successfully planted a dangerous provision in U.S. law that strips judges of their constitutional mandate to protect American’s health and the environment while opening up the floodgates for the planting of new, untested genetically engineered crops.

Even if their new GMO crops are ultimately proven to be harmful to human health or the environment, Section 735 allows them to be planted the minute the USDA approves them!

Even more alarming, currently 13 new crops are awaiting approval at the USDA and AquaBounty’s GMO salmon is on the verge of being approved by the FDA. This new provision opens the door wide open for these approvals.

If the biotech industry can so easily override our court system, which is our last resort in stopping these dangerous crops from being planted, we will have no place left to turn. And Monsanto will have completed its hostile takeover of the U.S. government.

13 Responses to “Monsanto Teams up with Congress to Shred the Constitution”

Here is the text of Section 735 of H.R. 933. I am not sure what it really means.

In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act H. R. 933—35 is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.

[...] And, because judges will no longer be able to prevent GM crops from being planted, it’s “bye-bye” to the separation of US government and judiciary enshrined in the US Constitution. “We will [...]

It’s not surprising Senator Tester is opposed to it. His ownership in an organic farm would be contradictory to the use of GMO crops, and he seems to be acting in his own financial interests, just as you are accusing the other side of doing.

[...] the bill. “Why is this such a big deal?” asked public health attorney Michele Simon in her blog Appetite for Profit. “The court system is often our last hope, with Congress, the White House and regulatory agencies [...]

I don’t think it’s fair to accuse Senator Tester or other organic farmers like that. Yes they are a business, how could they survive doing it for free? But they chose to take the more labor intensive, greener, healthier, and more responsible route in order to reduce the stress on our planet by not using poisons! What a backwards way of thinking you have, Steve.